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Is the Tribunal under duty to inquire as to the best interests of any minor children affected by the cancellation decision? Was the failure to inquire material?

Nahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 29 (8 March 2022)

Intro:-

This is an appeal from dismissal of application for judicial review of Administrative Appeals Tribunal’s decision to affirm decision not to revoke mandatory cancellation of visa on character grounds.

Facts:-

Mr Nahi is a citizen of New Zealand who has resided in Australia since 2010 when he was aged 14. Mr Nahi’s visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth) following his conviction for possession of stolen or unlawfully obtained property for which he was sentenced to 14 months’ imprisonment.

The Administrative Appeals Tribunal affirmed that decision on 10 February 2021 and published reasons for its decision (Tribunal’s reasons). A subsequent application to the Federal Court of Australia for judicial review of the Tribunal’s decision was dismissed on 29 September 2021.

Legislative provisions

Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that Mr Nahi did not pass the character test in s 501(1) of the Migration Act, because of the operation of subs (6)(a), on the basis of subs (7)(c).

Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019, and which applied to the decision in respect of the applicant’s visa refusal. (I interpolate that Direction 79 has since been revoked and replaced with Direction 90 made on 8 March 2021 with effect from 15 April 2021).

Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that Mr Nahi did not pass the character test in s 501(1) of the Migration Act, because of the operation of subs (6)(a), on the basis of subs (7)(c).

Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019, and which applied to the decision in respect of the applicant’s visa refusal. (I interpolate that Direction 79 has since been revoked and replaced with Direction 90 made on 8 March 2021 with effect from 15 April 2021).

Issues:-

1) Whether learned primary judge erred by failing to find that the Second Respondent was under a duty to inquire after the best interests of the children affected by its decision?

2) Whether the learned primary judge erred by finding that any failure to inquire by the Second Respondent after the best interests of children affected by its decision was not material?

Ground 1

As to Ground One, Mr Nahi contends that the source of the Tribunal’s duty to inquire is s 499 of the Migration Act and Direction 79. In this respect, the primary judge said:

It might well be accepted that there was an obligation on the Tribunal to make an “obvious inquiry” such as “what was the relationship of the minor children to the applicant?” and “what is the evidence that the applicant relies upon with respect to the best interests of minor children?” I do not accept, however, that there was any obligation on the Tribunal to seek to supplement or independently investigate the evidence relied upon by the applicant for the best interests of the minor children consideration, particularly in circumstances where the Tribunal had expressly raised its concerns as to the scope of the material advanced by the applicant to his representative in the course of the hearing before it. The role of the Tribunal was to consider the representations made to it to determine whether the criteria in s 501CA(4) had been met: Taualii at [96] (Anderson J); Pennie at [14] (Davies, Derrington and Colvin JJ).

In Pennie v Minister for Home Affairs [2019] FCAFC 129, the Full Court held:-

"The primary judge correctly stated that it was for Mr Pennie to put before the Minister what he wanted the Minister to take into account and it was not for the Minister to undertake his own research or investigate for himself the likelihood or otherwise of Mr Pennie finding housing in Ireland, or obtaining social with fair or adequate healthcare. The Minister had no legal duty to make such inquiries for himself nor to make findings of fact as to whether Mr Pennie would be entitled to social and housing welfare if removed to Ireland: Maihoa at [41]-[46] (Rares and Robertson JJ). His legal duty was to address the representations made and to take them into account in considering whether to revoke the cancellation decision. A fair reading of the Minister’s reasons discloses that he both considered and weighed up the matters put to him by Mr Pennie."

(emphasis added)

Taualii v Minister for Home Affairs [2019] FCA 2013 and Pennie both involved decisions that had been made by the Minister personally. Mr Nahi submits that this distinction is sufficient to render the primary judge’s conclusion wrong and asserts that in this case, the Tribunal was bound to take into account the relevant considerations set out in Direction 79, not only the representations made by Mr Nahi. Mr Nahi further submits that under Direction 79 the best interests of the children was a critical matter in respect of which the Tribunal was bound to make an obvious inquiry and the obvious thing to do was for the Tribunal to question the witnesses relied upon by Mr Nahi. Implicit in the submission was a contention that the Tribunal was bound to take that course irrespective of the position adopted by his counsel before the Tribunal.

These submissions should not be accepted.

Firstly, the Tribunal clearly satisfied its obligation under Direction 79, by reference to the specific provisions of paragraph 13.2(4) of that Direction. Those factors have been stated above. In this case, they required an evaluation of matters such as the nature and duration of the relationship between each child and Mr Nahi, the extent to which he was likely to play a positive parental role, the likely effect of separation on the child and whether there are others who are likely to fulfil the parenting role. The inability of the Tribunal to make any informed assessment of the matters identified in paragraph 13.2(4) of Direction 79 because of ‘insufficient evidence’ (Tribunal’s reasons at [84]) does not negate that proposition.

The Tribunal considered the evidence before it relevant to that consideration. Such evidence was relatively scant. The lawyers acting for Mr Nahi advanced the following matters as to the best interests of minor children in three short paragraphs in a detailed statement of facts, issues and contentions:

- The Applicant’s [sic] has a niece and nephew who are the children of his eldest brother. The family are close knit and see one another on a weekly basis. Prior to his incarceration [the applicant] was involved in the life of his niece and they bonded. The impact upon their lives will result from the absence of an Uncle who is a key member of his family.

- The Applicant is additionally an active and loving God Father to [two godsons].

- The Applicant is close to his fiancé’s youngest brother...who is 6 years old. He has been close to [him] and they have lived together for long periods during [his] life.

A statement from Mr Nahi’s partner referred to Mr Nahi’s relationship with his niece, godchild, and his partner’s younger brother. A letter from Joshua Thompson referred to Mr Nahi as the godfather to Mr Thompson’s son and a subsequent statement from Mr Thompson referred to Mr Nahi having become the godfather to his second child. There was a letter from Connor Minas referring to Mr Nahi’s godson. During oral evidence, Mr Nahi referred to his relationship with his partner’s younger brother and the support he provides to him.

During the course of the hearing, the Deputy President stated that he could not see where there was any evidence that would assist the Tribunal in considering the factors specified in the direction. In substance, counsel appearing for Mr Nahi accepted that was the case and pointed to the limited very general evidence that had been given. The Deputy President observed in that exchange 'Yes, okay. As long as I am not overlooking anything'.

Plainly, the Tribunal was concerned to give notice that the material that had been put forward appeared to be insufficient. There was no suggestion by counsel that there might be further evidence or further inquiry. The submissions in the facts, issues and contentions are expressed in the most general of terms. When their insufficiency was exposed there was no suggestion that there was available further material that could be brought before the Tribunal. In those circumstances, the Tribunal was entitled to proceed on the basis that the material that was before the Tribunal was the extent of the available evidence concerning the best interests of the children, especially where the children were not Mr Nahi's own children nor was there any suggestion that they were children in respect of whom he fulfilled parental responsibilities.

The Tribunal recorded that none of the statements assisted the Tribunal in assessing the factors identified in paragraph 13.2(4) of Direction 79. The Tribunal was entitled to find, on the basis of the evidence that had been elicited, that this primary consideration did not weigh in favour of the revocation of the cancellation of Mr Nahi’s visa. By doing so, it had regard to the best interests of the children.

Secondly, Mr Nahi was represented before the Tribunal. In its reasons, the Tribunal quoted the exchange with counsel and then expressed the view that there was insufficient evidence to make any informed assessment of the factors that were required to be considered in relation to the interests of minor children (Tribunal’s reasons at [84]). There is no issue taken with that conclusion. Rather, it is said that the Tribunal failed to inquire into the best interests of the five children. That is simply not correct. The Tribunal did inquire. It pointed out in terms the factors to which the Tribunal was required to have regard in assessing the best interest of minor children. Its inquiry met with a response from counsel that provided no hint of any matter that might be the subject of further inquiry in addressing the factors specified in the direction. No adjournment was sought to adduce further evidence and only one witness was asked to elaborate on the written statement in relation to the interests of the minor children.

Therefore, this is not a case in which there was a failure by the Tribunal to make an obvious inquiry about a critical fact of the kind referred to in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203. The Tribunal made inquiry. There was no constructive failure to exercise jurisdiction.

Thirdly, the contention that the Tribunal should itself have made inquiries of the witnesses about matters relevant to the interests of the children in addition to raising its concerns with counsel and seeking clarification as to whether it was overlooking anything appears to be a claim that the Tribunal 'did not go far enough to discharge its obligation to conduct its review having regard to the interests of [the children]' being the possibility recognised in Uelese at [68].

In the circumstances of the present case where the issue was raised with counsel and there was nothing to suggest that there was significant evidence of a different character that might be given by those witnesses, the obligation was discharged. Whether there are obvious inquiries that should have been is a matter that must be determined in the context in which matters unfolded before the Tribunal. It is not explained why, given the outline of facts, issues and contentions that were provided before the hearing, the content of the witnesses' statements and the answers given by counsel to the questions by the Deputy President it might be thought that there was other more significant evidence that might be forthcoming if further questions were asked. Therefore, there is no basis for concluding that the Tribunal should have gone further than seeking clarification from counsel that there was nothing else beyond the way the case was put in contentions.

Ground 2

As to Ground Two, no criticism is made of the primary judge’s articulation of the principles relevant to materiality. Rather, the error is said to be in the application of those principles to Mr Nahi’s circumstances. Mr Nahi contends that the primary judge should have considered whether there were rational and reasonable choices open to the Tribunal as to the findings it could make in relation to the evidence adduced in the further affidavit material before the primary judge which in turn could realistically have resulted in a different decision. The further affidavit evidence was relevant to the second primary consideration, the best interests of minor children.

The circumstances of Mr Nahi’s offending were such as to lead the Tribunal to determine that the first primary consideration, the protection of the Australian community from criminal or other serious conduct, weighed moderately against revocation, and that the third primary consideration, the expectations of the Australian community, was given only minor weight against revocation of the decision. These considerations were not outweighed by the Tribunal’s finding that the strength, nature, and duration of the Mr Nahi’s ties to Australia weighed moderately in favour of revocation of the cancellation decision (Tribunal’s reasons at [122]). The weight accorded to various matters in Direction 79 is entirely a matter for the Tribunal.

Whether the decision that was in fact made could have been different had the further evidence been available, ‘falls to be determined as a matter of reasonable conjecture with the parameters set by the historical facts that have been determined on the balance of probabilities’: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]. The High Court went on to explain, at [39]:

"Bearing the overall onus of jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made...the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made..."

(Emphasis added)

The further affidavit evidence was provided by Ms Tran (Mr Nahi’s de facto partner), Mr Eugene Nahi (Mr Nahi’s father), Mrs Nahi (Mr Nahi’s mother), and Mr Nahi himself. Before the primary judge, there was no challenge to any of the evidence contained in the affidavits and counsel for the Minister invited this Court to accept that it was truthful evidence that would have been given before the Tribunal if the deponents had been asked the relevant questions. We have proceeded on that basis.

The primary judge described the further affidavit evidence as (Reasons at [70]),

"largely of a qualitative character and expressed in general terms. It revealed the extent of the emotional attachments that the applicant had established with the five children and the importance of their relationships with him, rather than the extent to which any of them depended on the applicant for their living expenses, accommodation, clothing, transport and day to day care."

It cannot be doubted that emotional attachments of themselves may be of great significance for the wellbeing of children. The interests of children may be substantially affected if they are separated from people with whom they have formed strong bonds, irrespective of whether those people also provide practical support. Evidence of that kind may be adduced to demonstrate the strength and duration of a relationship. It may be persuasive in the particular circumstances.

In the present case, particularly given the very young ages of the relevant children, it is a matter of note that further affidavit evidence was not elicited from any of the children’s parents in relation to their own child’s relationship with Mr Nahi. Such evidence as was given by the children’s parents was before the Tribunal. That evidence was limited to a statement from the father of Mr Nahi’s two godchildren who spoke of not wanting Mr Nahi to ‘miss out on them growing up’.

When considering the strength, nature and duration of Mr Nahi’s ties to Australia, the Tribunal said, (Tribunal’s reasons at [99]):

The Applicant’s SFIC (paras 54—61) claims the following ties that the Applicant has to Australia and the family and other links to Australian residents:

...
The Applicant has a number of significant Australian minors who are reliant upon his presence in their lives, he wants to be an example to them. He wants to show them that he is someone who has made mistakes but will demonstrate positive and meaningful change in his life. This claim is not supported by the evidence. There is certainly no evidence to support the claim that any minor is reliant on the Applicant’s presence in their life. As noted earlier, and as conceded by Ms Watts at the hearing (see [83] above), there was no evidence other than general statements of a desire to be supportive in the future in the Applicant’s Personal Circumstances Form ... to support his claim.
(Emphasis added)

Each of the further affidavits depose to the ages of the five children. The children’s respective dates of birth have some bearing on the weight to be accorded to some of the claims made in the affidavits when considering the counterfactual question of whether the decision of the Tribunal could have been different if the evidence therein had been before the Tribunal.

As at the date of the Tribunal’s Reasons (10 February 2021), Mr Nahi had been in custody since 29 August 2019. Three of the children had been born before Mr Nahi was incarcerated – his de facto partner’s brother, on 9 June 2014; his godson, on 28 March 2018, and his niece, on 15 January 2019. The remaining two children, a niece and another godson, were born on 15 May 2020 and 22 April 2020 respectively.

When it came to the evidence concerning the children, the terms of Direction 79 were specific as to the factors to which the Tribunal was to have regard. They were specified in paragraph 13.4. The following observations can be made concerning whether there was a realistic possibility that the evidence that would have been given could have resulted in a favourable decision for Mr Nahi having regard to the specified factors:

- the evidence as to the nature and duration of the relationships between Mr Nahi and the children shows that it has been relatively limited, with the longest relationship being of about five years duration pre-incarceration and two and a half years since his incarceration, with his de facto partner’s brother. Mr Nahi’s relationship to each child is non-parental and there was no evidence that any of the children’s primary residences were with Mr Nahi and his partner. In respect of the three older children, Mr Nahi has been incarcerated for periods representing a significant portion of their very young lives and he has had no contact with the two younger children (13.2(4)(a));

- there is no evidence that Mr Nahi is likely to play a parental role for any of these children, not being a parent of any of them (13.2(4)(b));

- there is no evidence that Mr Nahi’s conduct is likely to have a negative impact on any of the children (13.2(4)(c));

- there is some evidence from the father of Mr Nahi’s godson that the child will ‘miss out’ on having Mr Nahi around. There is further evidence, albeit not from the parents of either child, that at least the two eldest children may be affected by separation from Mr Nahi, although there is evidence that contact is presently maintained by FaceTime. ((13.2(4)(d));

- there are other persons who fulfil the parenting role in relation to each of the children (13.2(4)(e));

- there is no evidence of the views of the children which is unsurprising given their very young ages (13.2(4)(f));

- there is no suggestion of any abuse, neglect, physical or emotional trauma arising from Mr Nahi’s conduct (13.2(4)(g)-(h)).

The further affidavits do not depose to historical facts sufficient to sustain the requisite reasonable conjecture that the Tribunal could have made a different decision. They depose to Mr Nahi’s love for the children, his babysitting of the two eldest children, and to the fact that the children were ‘always happy’ when Mr Nahi was around. This evidence goes little further than that which was before the Tribunal and which was considered in its weighing of Mr Nahi’s ties to Australia, which were assessed to weigh moderately in favour of revocation of the decision to cancel Mr Nahi’s visa (Tribunal’s reasons at [120]).

In light of the ultimate finding by the Tribunal, and in light of the quite limited forensic utility of the further affidavit evidence, it is difficult to see that there is a realistic possibility that a different decision could have been made if that further evidence had been elicited by the Tribunal. The primary judge was correct to conclude that it could not have realistically resulted in a different decision by the Tribunal: MZAPC at [38].

Therefore, Ground Two also should not be upheld.

Conclusion:-

For these reasons, the appeal must be dismissed.

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